EXECUTION COPY
AMENDED AND RESTATED TRUST AGREEMENT
among
BNCCORP, INC.,
as Depositor
FIRST UNION NATIONAL BANK,
as Property Trustee
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
as Delaware Trustee
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
as Administrative Trustees
Dated as of July 12, 2000
BNC CAPITAL TRUST I
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TABLE OF CONTENTS
ARTICLE I. DEFINED TERMS........................................SECTION1.1.
Definitions
ARTICLE II. THE TRUST............................................SECTION2.1.
Name
SECTION2.2. Office of the Delaware Trustee; Principal Place of
Business................................................11
SECTION2.3. Initial Contribution of Trust Property; Fees, Costs
and Expenses............................................11
SECTION2.4. Purposes of Trust.........................................11
SECTION2.5. Authorization to Enter into Certain Transactions..........12
SECTION2.6. Assets of Trust...........................................14
SECTION2.7. Title to Trust Property...................................14
ARTICLE III. PAYMENT ACCOUNT; PAYING AGENTS......................SECTION3.1.
Payment Account
SECTION3.2. Appointment of Paying Agents.............................15\
ARTICLE IV. DISTRIBUTIONS; REDEMPTION............................SECTION4.1.
Distributions
SECTION4.2. Redemption................................................17
SECTION4.3. Subordination of Common Securities........................19
SECTION4.4. Payment Procedures........................................20
SECTION4.5. Withholding Tax...........................................20
SECTION4.6. Tax Returns and Reports...................................21
SECTION4.7. Payment of Taxes, Duties, Etc. of the Trust...............21
SECTION4.8. Payments under Indenture or Pursuant to Direct Actions....21
SECTION4.9. Exchanges.................................................21
ARTICLE V. SECURITIES...........................................SECTION5.1.
Initial Ownership
SECTION5.2. Authorized Trust Securities...............................22
SECTION5.3. Issuance of the Common Securities; Subscription and
Purchase of Notes.......................................22
SECTION5.4. The Securities Certificates...............................23
SECTION5.5. Rights of Holders.........................................23
SECTION5.6. Book-Entry Preferred Securities...........................23
SECTION5.7. Registration of Transfer and Exchange of Preferred
Securities Certificates.................................25
SECTION5.8. Mutilated, Destroyed, Lost or Stolen Securities
Certificates............................................26
SECTION5.9. Persons Deemed Holders....................................27
SECTION5.10.Cancellation..............................................27
SECTION5.11.Ownership of Common Securities by Depositor...............28
SECTION5.12.Restricted Legends........................................28
ARTICLE VI. MEETINGS; VOTING; ACTS OF HOLDERS....................SECTION6.1.
Notice of Meetings..........................................................29
SECTION6.2. Meetings of Holders of the Preferred Securities...........30
SECTION6.3. Voting Rights.............................................30
SECTION6.4. Proxies, Etc..............................................30
SECTION6.5. Holder Action by Written Consent..........................31
SECTION6.6. Record Date for Voting and Other Purposes.................31
SECTION6.7. Acts of Holders...........................................31
SECTION6.8. Inspection of Records.....................................32
SECTION6.9. Limitations on Voting Rights..............................32
SECTION6.10.Acceleration of Maturity; Rescission or Annulment;
Waivers of Past Defaults................................33
ARTICLE VII. REPRESENTATIONS AND WARRANTIES SECTION7.1.
Representations and Warranties of the Property Trustee and
the Delaware Trustee......................................35
SECTION7.2. Representations and Warranties of Depositor...............37
ARTICLE VIII. THE TRUSTEES.........................................SECTION8.1.
Number of Trustees..........................................................38
SECTION8.2. Property Trustee Required.................................38
SECTION8.3. Delaware Trustee Required.................................38
SECTION8.4. Appointment of Administrative Trustees....................39
SECTION8.5. Duties and Responsibilities of the Trustees...............39
SECTION8.6. Notices of Defaults and Extensions........................41
SECTION8.7. Certain Rights of Property Trustee........................41
SECTION8.8. Delegation of Power.......................................44
SECTION8.9. May Hold Securities.......................................44
SECTION8.10.Compensation; Reimbursement; Indemnity....................44
SECTION8.11.Resignation and Removal; Appointment of Successor.........45
SECTION8.12.Acceptance of Appointment by Successor....................46
SECTION8.13.Merger, Conversion, Consolidation or Succession
to Business.............................................47
SECTION8.14.Not Responsible for Recitals or Issuance of Securities....47
SECTION8.15.Property Trustee May File Proofs of Claim.................47
SECTION8.16.Reports to the Property Trustee...........................48
ARTICLE IX. TERMINATION, LIQUIDATION AND MERGER..................SECTION9.1.
Dissolution Upon Expiration Date............................................48
SECTION9.2. Early Termination.........................................48
SECTION9.3. Termination...............................................49
SECTION9.4. Liquidation...............................................49
SECTION9.5. Mergers, Consolidations, Amalgamations or
Replacements of Trust...................................51
ARTICLE X. MISCELLANEOUS PROVISIONS............................SECTION10.1.
Limitation of Rights of Holders.............................................52
SECTION10.2.Agreed Tax Treatment of Trust and Trust Securities........52
SECTION10.3.Amendment.................................................53
SECTION10.4.Separability..............................................54
SECTION10.5.Governing Law.............................................54
SECTION10.6.Successors................................................54
SECTION10.7.Headings..................................................54
SECTION10.8.Reports, Notices and Demands..............................55
SECTION10.9.Agreement Not to Petition.................................55
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EXHIBITS
Exhibit A Certificate of Trust
Exhibit B Form of Common Securities Certificate
Exhibit C Form of Preferred Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of July 12, 2000, among (i)
BNCCORP, INC., a Delaware corporation (including any successors or permitted
assigns, the "Depositor"), (ii) First Union National Bank, a national banking
association, as property trustee (in such capacity, the "Property Trustee"),
(iii) First Union Trust Company, National Association, a national banking
association, as Delaware trustee (in such capacity, the "Delaware Trustee"),
(iv) Tracy J. Scott, an individual, Gregory K. Cleveland, an individual and
Brenda L. Rebel, an individual, each of whose address is c/o BNCCORP, INC., 322
East Main Avenue, Bismarck, ND 58501, as administrative trustees (in such
capacities, each an "Administrative Trustee" and collectively the
"Administrative Trustees" and together with the Property Trustee and the
Delaware Trustee the "Trustees") and (v) the several Holders, as hereinafter
defined.
WITNESSETH
WHEREAS, the Depositor, the Property Trustee and the Delaware Trustee have
heretofore created a Delaware business trust pursuant to the Delaware Business
Trust Act by entering into a Trust Agreement, dated as of June 28, 2000 (the
"Original Trust Agreement"), and by executing and filing with the Secretary of
State of the State of Delaware the Certificate of Trust, substantially in the
form attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Placement Agreement and (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in and to the Notes;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
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ARTICLE I.
DEFINED TERMS
SECTION I.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article;
(b) the words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation";
(c) all accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles;
(d) unless the context otherwise requires, any reference to an "Article", a
"Section" or an "Exhibit" refers to an Article, a Section or an Exhibit, as the
case may be, of or to this Trust Agreement;
(e) the words "hereby", "herein", "hereof" and "hereunder" and other words
of similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision;
(f) a reference to the singular includes the plural and vice-versa; and
(g) the masculine, feminine or neuter genders used herein shall include the
masculine, feminine and neuter genders.
"Act" has the meaning specified in Section 6.7.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Additional Interest Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest paid by the Depositor on a Like Amount of Notes for such period.
"Additional Taxes" has the meaning specified in Section 1.1 of the
Indenture.
"Additional Tax Sums" has the meaning specified in Section 10.4 of the
Indenture.
"Administrative Trustee" means each of the Persons identified as an
"Administrative Trustee" in the preamble to this Trust Agreement, solely in each
such Person's capacity as Administrative Trustee of the Trust and not in such
Person's individual capacity, or any successor Administrative Trustee appointed
as herein provided.
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Depositary Procedures" means, with respect to any transfer or
transaction involving a Book-Entry Preferred Security, the rules and procedures
of the Depositary for such Book-Entry Preferred Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of such Person or of any substantial part of its property or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 60 consecutive
days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of such Person or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due and
its willingness to be adjudicated a bankrupt or insolvent, or the taking of
corporate action by such Person in furtherance of any such action.
"Bankruptcy Laws" means all federal and state bankruptcy, insolvency,
reorganization and other similar laws, including the United States Bankruptcy
Code.
"Board of Directors" means the board of directors of the Depositor or any
other duly authorized committee of the board of directors of the Depositor.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification.
"Book-Entry Preferred Security" means a Preferred Security, the ownership
and transfers of which shall be made through book entries by a Depositary.
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"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed or (c) a day on which the Corporate
Trust Office is closed for business.
"Closing Date" has the meaning specified in the Placement Agreement.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this Trust Agreement such Commission is not existing and performing
the duties assigned to it, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit B.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights provided
therefor in this Trust Agreement.
"Corporate Trust Office" means the principal office of the Property Trustee
at which any particular time its corporate trust business shall be administered,
which office at the date of this Trust Agreement is located at 401 S. Tryon
Street, 12th Floor, Charlotte, North Carolina 28288-1179, Attention: Corporate
Trust.
"Definitive Preferred Securities Certificates" means Preferred Securities
issued in certificated, fully registered form that are not Global Preferred
Securities.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ' 3801 et seq., or any successor statute thereto, in each
case as amended from time to time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee" in
the preamble to this Trust Agreement, solely in its capacity as Delaware Trustee
of the Trust and not in its individual capacity, or its successor in interest in
such capacity, or any successor Delaware Trustee appointed as herein provided.
"Depositary" means an organization registered as a clearing agency under
the Exchange Act that is designated as Depositary by the Depositor or any
successor thereto. DTC will be the initial Depositary.
"Depositary Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Depositary effects
book-entry transfers and pledges of securities deposited with the Depositary.
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"Depositor" has the meaning specified in the preamble to this Trust
Agreement and any successors and permitted assigns.
"Depositor Affiliate" has the meaning specified in Section 4.9.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"DTC" means The Depository Trust Company or any successor thereto.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) the occurrence of a Note Event of Default; or
(b) default by the Trust in the payment of any Distribution when it becomes
due and payable, and continuation of such default for a period of 30 days; or
(c) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in this Trust Agreement (other than those
specified in clause (b) or (c) above) and continuation of such default or breach
for a period of 30 days after there has been given, by registered or certified
mail, to the Trustees and to the Depositor by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Preferred Securities a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder, unless Holders in
aggregate Liquidation Amount of Outstanding Preferred Securities not less than
the aggregate Liquidation Amount of Outstanding Preferred Securities that gave
such notice shall agree in writing to an extension of such period prior to its
expiration; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee if a successor Property Trustee has not been appointed within 90 days
thereof.
"Exchange Act" means the Securities Exchange Act of 1934, and any successor
statute thereto, in each case as amended from time to time.
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"Expiration Date" has the meaning specified in Section 9.1.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System, as from time to time constituted, or, if at any time after the execution
of this Trust Agreement such Board is not existing and performing the duties now
assigned to it, then the body performing such duties at such time.
"Global Preferred Security" means a Preferred Securities Certificate
evidencing ownership of Book-Entry Preferred Securities.
"Guarantee Agreement" means the Guarantee Agreement executed and delivered
by the Depositor and First Union National Bank, as guarantee trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the holders of the Preferred Securities, as amended from time to
time.
"Holder" means a Person in whose name a Trust Security or Trust Securities
are registered in the Securities Register; any such Person shall be a beneficial
owner within the meaning of the Delaware Business Trust Act.
"Indemnified Person" has the meaning specified in Section 8.10(c).
"Indenture" means the Junior Subordinated Indenture executed and delivered
by the Depositor and the Note Trustee contemporaneously with the execution and
delivery of this Trust Agreement, for the benefit of the holders of the Notes,
as amended or supplemented from time to time.
"Investment Company Act" means the Investment Company Act of 1940, or any
successor statute thereto, in each case as amended from time to time.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of any Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Notes to be contemporaneously redeemed in accordance with the
Indenture, the proceeds of which will be used to pay the Redemption Price of
such Trust Securities, (b) with respect to a distribution of Notes to Holders of
Trust Securities in connection with a dissolution of the Trust, Notes having a
principal amount equal to the Liquidation Amount of the Trust Securities of the
Holder to whom such Notes are distributed and (c) with respect to any
distribution of Additional Interest Amounts to Holders of Trust Securities,
Notes having a principal amount equal to the Liquidation Amount of the Trust
Securities in respect of which such distribution is made.
"Liquidation Amount" means the stated amount of $1,000 per Trust Security.
<PAGE>
"Liquidation Date" means the date on which assets are to be distributed to
Holders in accordance with Section 9.4 hereunder following dissolution of the
Trust.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Preferred Securities" means
Preferred Securities representing more than 50% of the aggregate Liquidation
Amount of all then Outstanding Preferred Securities.
"Note Event of Default" means any "Event of Default" specified in Section
5.1 of the Indenture.
"Note Redemption Date" means, with respect to any Notes to be redeemed
under the Indenture, the date fixed for redemption of such Notes under the
Indenture.
"Note Trustee" means the Person identified as the "Trustee" in the
Indenture, solely in its capacity as Trustee pursuant to the Indenture and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Trustee appointed as provided in the Indenture.
"Notes" means the Depositor's 12.045% Junior Subordinated Notes issued
pursuant to the Indenture.
"Officers' Certificate" means a certificate signed by the Chief Executive
Officer, Chief Financial Officer, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Depositor, and delivered to the Trustees. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Trust Agreement (other than the certificate provided pursuant to Section
8.16) shall include:
(a) a statement by each officer signing the Officers' Certificate that such
officer has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers' Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
<PAGE>
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for or an employee of the Depositor or any Affiliate of the Depositor.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to any Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for which payment or redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any Paying
Agent in trust for the Holders of such Trust Securities; provided, that if such
Trust Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Trust Securities that have been paid or in exchange for or in lieu of
which other Trust Securities have been executed and delivered pursuant to the
provisions of this Trust Agreement, unless proof satisfactory to the Property
Trustee is presented that any such Trust Securities are held by Holders in whose
hands such Trust Securities are valid, legal and binding obligations of the
Trust;
provided, that in determining whether the Holders of the requisite Liquidation
Amount of the Outstanding Preferred Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate of the Depositor
or of any Trustee shall be disregarded and deemed not to be Outstanding, except
that (i) in determining whether any Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Preferred Securities that such Trustee knows to be so owned shall be so
disregarded and (ii) the foregoing shall not apply at any time when all of the
Outstanding Preferred Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Administrative Trustees the pledgee's right so to act
with respect to such Preferred Securities and that the pledgee is not the
Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of Book-Entry
Preferred Securities as reflected in the records of the Depositary or, if a
Depositary Participant is not the beneficial owner, then the beneficial owner as
reflected in the records of the Depositary Participant.
<PAGE>
"Paying Agent" means any Person authorized by the Administrative Trustees
to pay Distributions or other amounts in respect of any Trust Securities on
behalf of the Trust.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee for the benefit of the Holders in
which all amounts paid in respect of the Notes will be held and from which the
Property Trustee, through the Paying Agent, shall make payments to the Holders
in accordance with Sections 4.1 and 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association or government, or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Placement Agreement" means the Placement Agreement executed and delivered
by the the Trust, the Depositor and First Union Securities, Inc., as placement
agent, contemporaneously with the execution and delivery of this Trust
Agreement, as amended from time to time.
"Preferred Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement.
"Preferred Securities Certificate" means a certificate evidencing ownership
of Preferred Securities, substantially in the form attached as Exhibit C.
"Property Trustee" means the Person identified as the "Property Trustee" in
the preamble to this Trust Agreement, solely in its capacity as Property Trustee
of the Trust and not in its individual capacity, or its successor in interest in
such capacity, or any successor Property Trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided, that each Note Redemption Date and the stated maturity of the Notes
shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Notes.
<PAGE>
"Responsible Officer" means, with respect to the Property Trustee, any
Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or Assistant Trust Officer or any other officer of the Corporate
Trust Department of the Property Trustee and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Securities Act" means the Securities Act of 1933, and any successor
statute thereto, in each case as amended from time to time.
"Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.7.
"Successor Securities" has the meaning specified in Section 9.5.
"Trust" means the Delaware business trust known as "BNC Capital Trust I,"
which was created on June 28, 2000 under the Delaware Business Trust Act
pursuant to the Original Trust Agreement and the filing of the Certificate of
Trust, and continued pursuant to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including all exhibits.
"Trustees" has the meaning specified in the preamble to this Trust
Agreement.
"Trust Property" means (a) the Notes, (b) any cash on deposit in, or owing
to, the Payment Account and (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
ARTICLE II.
THE TRUST
SECTION II.1. Name.
The trust continued hereby shall be known as "BNC Capital Trust I", as such
name may be modified from time to time by the Administrative Trustees following
written notice to the Holders of Trust Securities and the other Trustees, in
which name the Trustees may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and sue and be sued.
<PAGE>
SECTION II.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is First Union
Trust Company, National Association, One Rodney Square, Suite 102, 920 King
Street, Wilmington, Delaware 19801, Attention: Corporate Trust, or such other
address in the State of Delaware as the Delaware Trustee may designate by
written notice to the Holders, the Depositor, the Property Trustee and the
Administrative Trustees. The principal executive office of the Trust is 322 East
Main Avenue, Bismarck, ND 58501, Attention: Gregory K. Cleveland or Brenda L.
Rebel, as such address may be changed from time to time by the Administrative
Trustees following written notice to the Holders and the other Trustees.
SECTION II.3. Initial Contribution of Trust Property; Fees,
Costs and Expenses.
The Property Trustee acknowledges receipt from the Depositor in connection
with the Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Depositor shall pay all fees, costs and expenses of
the Trust (except with respect to the Trust Securities) as they arise or shall,
upon request of any Trustee, promptly reimburse such Trustee for any such fees,
costs and expenses paid by such Trustee. The Depositor shall make no claim upon
the Trust Property for the payment of such fees, costs or expenses.
SECTION II.4. Purposes of Trust.
(a) The exclusive purposes and functions of the Trust are (i) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the Notes
and (ii) to engage in only those activities necessary or incidental thereto. The
Delaware Trustee, the Property Trustee and the Administrative Trustees are
trustees of the Trust, and have all the rights, powers and duties to the extent
set forth herein. The Trustees hereby acknowledge that they are trustees of the
Trust.
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trust (or the Trustees acting on behalf of the Trust)
shall not (i) acquire any investments or engage in any activities not authorized
by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage,
pledge, set-off or otherwise dispose of any of the Trust Property or interests
therein, including to Holders, except as expressly provided herein, (iii) incur
any indebtedness for borrowed money or issue any other debt, (iv) take or
consent to any action that would result in the placement of a Lien on any of the
Trust Property, (v) take or consent to any action that would reasonably be
expected to cause the Trust to become taxable as a corporation or classified as
other than a grantor trust for United States federal income tax purposes, (vi)
take or consent to any action that would cause the Notes to be treated as other
than indebtedness of the Depositor for United States federal income tax purposes
or (vii) take or consent to any action that would cause the Trust to be deemed
to be an "investment company" required to be registered under the Investment
Company Act.
<PAGE>
SECTION II.5. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance with
and subject to the terms of this Trust Agreement. In accordance with the
following provisions (i) and (ii), the Trustees shall have the authority to
enter into all transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied, otherwise granted
to the Trustees, under this Trust Agreement, and to perform all acts in
furtherance thereof, including the following:
(i) As among the Trustees, each Administrative Trustee shall severally
have the power and authority to act on behalf of the Trust with respect to
the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, such agreements as may be necessary or
desirable in connection with the purposes and function of the Trust;
(C) assisting in the sale of the Preferred Securities in one or
more transactions exempt from registration under the Securities Act,
and in compliance with applicable state securities or blue sky laws;
(D) assisting in the sending of notices (other than notices of
default) and other information regarding the Trust Securities and the
Notes to the Holders in accordance with this Trust Agreement;
(E) the appointment of a Paying Agent and Securities Registrar in
accordance with this Trust Agreement;
(F) execution of the Trust Securities on behalf of the Trust in
accordance with this Trust Agreement;
(G) execution and delivery of closing certificates, if any,
pursuant to the Placement Agreement and application for a taxpayer
identification number for the Trust;
(H) preparation and filing of all applicable tax returns and tax
information reports that are required to be filed on behalf of the
Trust;
(I) establishing a record date with respect to all actions to be
taken hereunder that require a record date to be established, except
as provided in Section 6.10(a);
<PAGE>
(J) unless otherwise required by the Delaware Business Trust Act
to execute on behalf of the Trust (either acting alone or together
with the other Administrative Trustees) any documents that such
Administrative Trustee has the power to execute pursuant to this Trust
Agreement; and
(K) the taking of any action incidental to the foregoing as such
Administrative Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement.
(ii) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the receipt and holding of legal title of the Notes;
(B) the establishment of the Payment Account;
(C) the collection of interest, principal and any other payments
made in respect of the Notes and the holding of such amounts in the
Payment Account;
(D) the distribution through the Paying Agent of amounts
distributable to the Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Notes in accordance with the terms of this Trust
Agreement;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Notes to the Holders in
accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation of the Trust
with the Secretary of State of the State of Delaware; and
(I) the taking of any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the benefit of the Holders
(without consideration of the effect of any such action on any
particular Holder).
<PAGE>
(b) In connection with the issue and sale of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the negotiation of the terms of, and the execution and delivery
of, the Placement Agreement providing for the sale of the Preferred
Securities in one or more transactions exempt from registration under the
Securities Act, and in compliance with applicable state securities or blue
sky laws; and
(ii) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(c) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be taxable as a corporation or
classified as other than a grantor trust for United States federal income tax
purposes, so that the Notes will be treated as indebtedness of the Depositor for
United States federal income tax purposes and so that the Trust will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act. In this connection, each Administrative Trustee is
authorized to take any action, not inconsistent with applicable law, the
Certificate of Trust or this Trust Agreement, that such Administrative Trustee
determines in his or her discretion to be necessary or desirable for such
purposes, as long as such action does not adversely affect in any material
respect the interests of the Holders of the Outstanding Preferred Securities. In
no event shall the Administrative Trustees be liable to the Trust or the Holders
for any failure to comply with this section that results from a change in law or
regulation or in the interpretation thereof.
(d) An action taken by a Trustee in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with any Trustee
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of such Trustee to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of any Trustee as set
forth in this Trust Agreement.
SECTION II.6. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
SECTION II.7. Title to Trust Property.
(a) Legal title to all Trust Property shall be vested at all times in the
Property Trustee and shall be held and administered by the Property Trustee in
trust for the benefit of the Trust and the Holders in accordance with this Trust
Agreement.
<PAGE>
(b) The Holders shall not have any right or title to the Trust Property
other than the undivided beneficial interest in the assets of the Trust
conferred by their Trust Securities and they shall have no right to call for any
partition or division of property, profits or rights of the Trust except as
described below. The Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT; PAYING AGENTS
SECTION III.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and the Paying Agent shall have
exclusive control and sole right of withdrawal with respect to the Payment
Account for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Trust Agreement. All monies and other property
deposited or held from time to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the exclusive benefit of the Holders
and for distribution as herein provided.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Notes. Amounts held in the Payment
Account shall not be invested by the Property Trustee pending distribution
thereof.
<PAGE>
SECTION III.2. Appointment of Paying Agents.
The Paying Agent shall initially be the Property Trustee. The Paying Agent
shall make Distributions to Holders from the Payment Account and shall report
the amounts of such Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to withdraw funds from
the Payment Account solely for the purpose of making the Distributions referred
to above. The Administrative Trustees may revoke such power and remove the
Paying Agent in their sole discretion. Any Person acting as Paying Agent shall
be permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees and the Property Trustee. If the Property Trustee shall
no longer be the Paying Agent or a successor Paying Agent shall resign or its
authority to act be revoked, the Administrative Trustees shall appoint a
successor (which shall be a bank or trust company) to act as Paying Agent. Such
successor Paying Agent appointed by the Administrative Trustees shall execute
and deliver to the Trustees an instrument in which such successor Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
will hold all sums, if any, held by it for payment to the Holders in trust for
the benefit of the Holders entitled thereto until such sums shall be paid to
such Holders. The Paying Agent shall return all unclaimed funds to the Property
Trustee and upon removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to the Property Trustee. The provisions of Article
VIII shall apply to the Property Trustee also in its role as Paying Agent, for
so long as the Property Trustee shall act as Paying Agent and, to the extent
applicable, to any other Paying Agent appointed hereunder. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION IV.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including any Additional Interest Amounts)
will be made on the Trust Securities at the rate and on the dates that payments
of interest (including any Additional Interest) are made on the Notes.
Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and
shall accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accumulate from July 26,
2000, and, except as provided in clause (ii) below, shall be payable
semi-annually in arrears on January 19 and July 19 of each year, commencing
on January 19, 2001. If any date on which a Distribution is otherwise
payable on the Trust Securities is not a Business Day, then the payment of
such Distribution shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day,
in each case, with the same force and effect as if made on such date. (each
date on which distributions are payable in accordance with this Section
4.1(a), a "Distribution Date");
(ii) in the event (and to the extent) that the Depositor exercises its
right under the Indenture to defer the payment of interest on the Notes,
Distributions on the Preferred Securities shall be deferred;
(iii) Distributions shall accumulate in respect of the Trust
Securities at a rate of 12.045% per annum of the Liquidation Amount of the
Trust Securities. The amount of Distributions payable for any period less
than a full Distribution period shall be computed on the basis of a 360-day
year of twelve 30-day months and the actual number of days elapsed in a
partial month in a period. Distributions payable for each full Distribution
period will be computed by dividing the rate per annum by two. The amount
of Distributions payable for any period shall include any Additional
Interest Amounts in respect of such period; and
<PAGE>
(iv) Distributions on the Trust Securities shall be made by the Paying
Agent from the Payment Account and shall be payable on each Distribution
Date only to the extent that the Trust has funds then on hand and available
in the Payment Account for the payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities at the close of business on the relevant
record date, which shall be at the close of business on the fifteenth day
(whether or not a Business Day) preceding the relevant Distribution Date.
Distributions payable on any Trust Securities that are not punctually paid on
any Distribution Date as a result of the Depositor having failed to make an
interest payment under the Notes will cease to be payable to the Person in whose
name such Trust Securities are registered on the relevant record date, and such
defaulted Distributions and any Additional Interest Amounts will instead be
payable to the Person in whose name such Trust Securities are registered on the
special record date, or other specified date for determining Holders entitled to
such defaulted Distribution and Additional Interest Amount, established in
accordance with the Indenture.
SECTION IV.2. Redemption.
(a) On each Note Redemption Date and on the stated maturity of the Notes,
the Trust will be required to redeem a Like Amount of Trust Securities at the
Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to the Indenture, as
calculated by the Depositor, together with a statement that it is an
estimate and that the actual Redemption Price will be calculated on the
third Business Day prior to the Redemption Date (and if an estimate is
provided, a further notice shall be sent of the actual Redemption Price on
the date that such Redemption Price is calculated);
(iii) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation Amount of the
particular Trust Securities to be redeemed;
(iv) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accumulate on and after said date,
except as provided in Section 4.2(d); and
<PAGE>
(v) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price; and
(vi) such other provisions as the Property Trustee deems relevant.
(c) The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price with the proceeds from the contemporaneous redemption of
Notes. Redemptions of the Trust Securities shall be made and the Redemption
Price shall be payable on each Redemption Date only to the extent that the Trust
has funds then on hand and available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of any
Preferred Securities, then by 10:00 A.M., New York City time, on the Redemption
Date, the Depositor shall deposit sufficient funds with the Property Trustee to
pay the Redemption Price. If such deposit has been made by such time, then by
12:00 noon, New York City time, on the Redemption Date, the Property Trustee
will, with respect to Book-Entry Preferred Securities, irrevocably deposit with
the Depositary for such Book-Entry Preferred Securities, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and will give
such Depositary irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities. With respect to Preferred
Securities that are not Book-Entry Preferred Securities, the Property Trustee
will irrevocably deposit with the Paying Agent, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and will give
the Paying Agent irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities upon surrender of their
Preferred Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Securities Register on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of Holders
holding Trust Securities so called for redemption will cease, except the right
of such Holders to receive the Redemption Price and any Distribution payable in
respect of the Trust Securities on or prior to the Redemption Date, but without
interest, and such Securities will cease to be Outstanding. In the event that
any date on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (without any interest or other payment in
respect of any such delay), except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately preceding Business
Day, in each case, with the same force and effect as if made on such date. In
the event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not paid
either by the Trust or by the Depositor pursuant to the Guarantee Agreement,
Distributions on such Trust Securities will continue to accumulate, as set forth
in Section 4.1, from the Redemption Date originally established by the Trust for
such Trust Securities to the date such Redemption Price is actually paid, in
which case the actual payment date will be the date fixed for redemption for
purposes of calculating the Redemption Price.
<PAGE>
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated pro
rata to the Common Securities and the Preferred Securities based upon the
relative aggregate Liquidation Amounts of the Common Securities and the
Preferred Securities. The particular Preferred Securities to be redeemed shall
be selected on a pro rata basis based upon their respective Liquidation Amounts
not more than 60 days prior to the Redemption Date by the Property Trustee from
the Outstanding Preferred Securities not previously called for redemption,
provided, that so long as the Preferred Securities are Book-Entry Preferred
Securities, such selection shall be made in accordance with the Applicable
Depositary Procedures for the Preferred Securities by such Depositary. The
Property Trustee shall promptly notify the Securities Registrar in writing of
the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Preferred Securities that has been or is to be redeemed.
(f) The Trust in issuing the Trust Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Property Trustee shall indicate the
"CUSIP" numbers of the Trust Securities in notices of redemption and related
materials as a convenience to Holders; provided, that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Trust Securities or as contained in any notice of redemption and
related materials.
<PAGE>
SECTION IV.3. Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Interest Amounts)
on, the Redemption Price of, and the Liquidation Distribution in respect of, the
Trust Securities, as applicable, shall be made, pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, that if on any Distribution Date, Redemption Date or
Liquidation Date an Event of Default shall have occurred and be continuing, no
payment of any Distribution (including any Additional Interest Amounts) on,
Redemption Price of, or Liquidation Distribution in respect of any Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions (including any Additional
Interest Amounts) on all Outstanding Preferred Securities for all Distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all Outstanding
Preferred Securities then called for redemption, or in the case of payment of
the Liquidation Distribution the full amount of such Liquidation Distribution on
all Outstanding Preferred Securities, shall have been made or provided for, and
all funds immediately available to the Property Trustee shall first be applied
to the payment in full in cash of all Distributions (including any Additional
Interest Amounts) on, or the Redemption Price of, or the Liquidation
Distribution in respect of, the Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default, the Holders of
the Common Securities shall have no right to act with respect to any such Event
of Default under this Trust Agreement until all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until all such Events of Default under this Trust Agreement with
respect to the Preferred Securities have been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders of
the Preferred Securities and not on behalf of the Holders of the Common
Securities, and only the Holders of all the Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
SECTION IV.4. Payment Procedures.
Payments of Distributions (including any Additional Interest Amounts) or of
the Redemption Price, Liquidation Amount or any other amounts in respect of the
Preferred Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, at
the option of the Depositor, by wire transfer to accounts specified by the
Holders in accordance with procedures established by the Administrative
Trustees. If the Preferred Securities are held by a Depositary, such
Distributions shall be made to the Depositary in immediately available funds.
Payments in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Holder of all the
Common Securities.
SECTION IV.5. Withholding Tax.
The Trust and the Administrative Trustees shall comply with all withholding
and backup withholding tax requirements under United States federal, state and
local law. The Administrative Trustees on behalf of the Trust shall request, and
the Holders shall provide to the Trust, such forms or certificates as are
necessary to establish an exemption from withholding and backup withholding tax
with respect to each Holder, and any representations and forms as shall
reasonably be requested by the Administrative Trustees on behalf of the Trust to
assist it in determining the extent of, and in fulfilling, its withholding and
backup withholding tax obligations. The Administrative Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding and backup withholding tax is properly established by a Holder,
shall remit amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to withhold and pay over
any amounts to any jurisdiction with respect to Distributions or allocations to
any Holder, the amount withheld shall be deemed to be a Distribution in the
amount of the withholding to the Holder. In the event of any claimed
overwithholding, Holders shall be limited to an action against the applicable
jurisdiction. If the amount required to be withheld was not withheld from actual
Distributions made, the Administrative Trustees on behalf of the Trust may
reduce subsequent Distributions by the amount of such required withholding.
<PAGE>
SECTION IV.6. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared) at the
principal office of the Trust in the United States, as defined for purposes of
Treasury regulations section 301.7701-7, at the Depositor's expense, and file
all United States federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. The Administrative
Trustees shall prepare at the principal office of the Trust in the United
States, as defined for purposes of Treasury regulations section 301.7701-7, and
furnish (or cause to be prepared and furnished) by January 31 in each taxable
year of the Trust to each Holder all Internal Revenue Service forms and returns
required to be provided by the Trust. The Administrative Trustees shall provide
the Depositor and the Property Trustee with a copy of all such returns and
reports promptly after such filing or furnishing.
SECTION IV.7. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Notes of Additional Tax Sums and upon the written
direction of the Administrative Trustees, the Property Trustee shall promptly
pay, solely out of monies on deposit pursuant to this Trust Agreement, any
Additional Taxes imposed on the Trust by the United States or any other taxing
authority.
SECTION IV.8. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder (or any Owner
with respect thereto) has directly received pursuant to Section 5.8 of the
Indenture or Section 6.10(b) of this Trust Agreement.
SECTION IV.9. Exchanges.
(a) If at any time the Depositor or any of its Affiliates (in either case,
a "Depositor Affiliate") is the Owner or Holder of any Preferred Securities,
such Depositor Affiliate shall have the right to deliver to the Property Trustee
all or such portion of its Preferred Securities as it elects and receive, in
exchange therefor, a Like Amount of Notes. Such election (i) shall be
exercisable effective on any Distribution Date by such Depositor Affiliate
delivering to the Property Trustee a written notice of such election specifying
the Liquidation Amount of Preferred Securities with respect to which such
election is being made and the Distribution Date on which such exchange shall
occur, which Distribution Date shall be not less than ten Business Days after
the date of receipt by the Property Trustee of such election notice and (ii)
shall be conditioned upon such Depositor Affiliate having delivered or caused to
be delivered to the Property Trustee or its designee the Preferred Securities
that are the subject of such election by 10:00 A.M. New York time, on the
Distribution Date on which such exchange is to occur. After the exchange, such
Preferred Securities will be canceled and will no longer be deemed to be
Outstanding and all rights of the Depositor Affiliate with respect to such
Preferred Securities will cease.
<PAGE>
(b) In the case of an exchange described in Section 4.9(a), the Property
Trustee on behalf of the Trust will, on the date of such exchange, exchange
Notes having a principal amount equal to a proportional amount of the aggregate
Liquidation Amount of the Outstanding Common Securities, based on the ratio of
the aggregate Liquidation Amount of the Preferred Securities exchanged pursuant
to Section 4.9(a) divided by the aggregate Liquidation Amount of the Preferred
Securities Outstanding immediately prior to such exchange, for such proportional
amount of Common Securities held by the Depositor (which contemporaneously shall
be canceled and no longer be deemed to be Outstanding); provided, that the
Depositor delivers or causes to be delivered to the Property Trustee or its
designee the required amount of Common Securities to be exchanged by 10:00 A.M.
New York time, on the Distribution Date on which such exchange is to occur.
ARTICLE V.
SECURITIES
SECTION V.1. Initial Ownership.
Upon the creation of the Trust and the contribution by the Depositor
referred to in Section 2.3 and until the issuance of the Trust Securities, and
at any time during which no Trust Securities are Outstanding, the Depositor
shall be the sole beneficial owner of the Trust.
SECTION V.2. Authorized Trust Securities.
The Trust shall be authorized to issue one series of Preferred Securities
having an aggregate Liquidation Amount of $7,500,000 and one series of Common
Securities having an aggregate Liquidation Amount of $232,000.
SECTION V.3. Issuance of the Common Securities; Subscription and Purchase
of Notes.
On the Closing Date, an Administrative Trustee, on behalf of the Trust,
shall execute and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, evidencing an aggregate of 232 Common
Securities having an aggregate Liquidation Amount of $232,000, against receipt
by the Trust of the aggregate purchase price of such Common Securities of
$232,000. Contemporaneously therewith and with the sale by the Trust to the
Holders of an aggregate of 7,500 Preferred Securities having an aggregate
Liquidation Amount of $7,500,000, an Administrative Trustee, on behalf of the
Trust, shall subscribe for and purchase from the Depositor Notes, to be
registered in the name of the Property Trustee on behalf of the Trust and having
an aggregate principal amount equal to $7,732,000, and, in satisfaction of the
purchase price for such Notes, the Property Trustee, on behalf of the Trust,
shall deliver to the Depositor the sum of $7,732,000 (being the aggregate amount
paid by the Holders for the Preferred Securities and the amount paid by the
Depositor for the Common Securities).
<PAGE>
SECTION V.4. The Securities Certificates.
(a) The Preferred Securities Certificates shall be issued in minimum
denominations of $1,000 Liquidation Amount and integral multiples of $1,000 in
excess thereof, and the Common Securities Certificates shall be issued in
minimum denominations of $1,000 Liquidation Amount and integral multiples of
$1,000 in excess thereof. The Securities Certificates shall be executed on
behalf of the Trust by manual or facsimile signature of at least one
Administrative Trustee. Securities Certificates bearing the signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign such Securities Certificates on behalf of the Trust shall be
validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Securities Certificates or did not have
such authority at the date of delivery of such Securities Certificates.
(b) On the Closing Date, the Administrative Trustees shall cause Securities
Certificates to be executed on behalf of the Trust and delivered to or upon the
written order of the Depositor, executed by an authorized officer thereof,
without further corporate action by the Depositor, in authorized denominations.
(c) Upon the election of the Depositor prior to their original issuance,
which election need not be in writing, Preferred Securities shall be Book-Entry
Preferred Securities issued in the form of one or more Global Preferred
Securities registered in the name of DTC, as Depositary, or its nominee and
deposited with DTC or a custodian for DTC for credit by DTC to the respective
accounts of the Owners thereof (or such other accounts as they may direct).
SECTION V.5. Rights of Holders.
The Trust Securities shall have no preemptive or similar rights and when
issued and delivered to Holders against payment of the purchase price therefor
will be fully paid and non-assessable by the Trust. Except as provided in
Section 5.11(b), the Holders of the Trust Securities, in their capacities as
such, shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
<PAGE>
SECTION V.6. Book-Entry Preferred Securities.
(a) No Global Preferred Security may be exchanged in whole or in part for
Preferred Securities Certificates registered, and no transfer of a Global
Preferred Security in whole or in part may be registered, in the name of any
Person other than the Depositary for such Global Preferred Security or a nominee
thereof unless (i) the Depositary advises the Administrative Trustees and the
Property Trustee in writing that the Depositary is no longer willing or able to
properly discharge its responsibilities with respect to the Global Preferred
Security, and no qualified successor is appointed by the Administrative Trustees
within 90 days of receipt of such notice, (ii) the Depositary ceases to be a
clearing agency registered under the Exchange Act and the Administrative
Trustees fail to appoint a qualified successor within 90 days of obtaining
knowledge of such event, (iii) the Administrative Trustees at their option
advise the Property Trustee in writing that the Trust elects to terminate the
book-entry system through the Depositary or (iv) a Note Event of Default has
occurred and is continuing. Upon the occurrence of any event specified in clause
(i), (ii), (iii) or (iv) above, the Administrative Trustees shall notify the
Depositary and instruct the Depositary to notify all Owners of Book-Entry
Preferred Securities, the Delaware Trustee and the Property Trustee of the
occurrence of such event and of the availability of the Definitive Preferred
Securities Certificates to Owners of the Preferred Securities requesting the
same. Upon the issuance of Definitive Preferred Securities Certificates, the
Trustees shall recognize the Holders of the Definitive Preferred Securities
Certificates as Holders.
(b) If any Global Preferred Security is to be exchanged for Definitive
Preferred Securities Certificates or canceled in part, or if any Definitive
Preferred Securities Certificate is to be exchanged in whole or in part for any
Global Preferred Security, then either (i) such Global Preferred Security shall
be so surrendered for exchange or cancellation as provided in this Article V or
(ii) the aggregate Liquidation Amount represented by such Global Preferred
Security shall be reduced, subject to Section 5.4, or increased by an amount
equal to the Liquidation Amount represented by that portion of the Global
Preferred Security to be so exchanged or canceled, or equal to the Liquidation
Amount represented by such Definitive Preferred Securities Certificates to be so
exchanged for any Global Preferred Security, as the case may be, by means of an
appropriate adjustment made on the records of the Securities Registrar,
whereupon the Property Trustee, in accordance with the Applicable Depositary
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender to the
Administrative Trustees or the Securities Registrar of any Global Preferred
Security or Securities by the Depositary, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute the
Definitive Preferred Securities Certificates in accordance with the instructions
of the Depositary. None of the Securities Registrar or the Trustees shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be fully protected in relying on, such instructions.
(c) Every Preferred Securities Certificate executed and delivered upon
registration or transfer of, or in exchange for or in lieu of, a Global
Preferred Security or any portion thereof shall be executed and delivered in the
form of, and shall be, a Global Preferred Security, unless such Preferred
Securities Certificate is registered in the name of a Person other than the
Depositary for such Global Preferred Security or a nominee thereof.
<PAGE>
(d) The Depositary or its nominee, as registered owner of a Global
Preferred Security, shall be the Holder of such Global Preferred Security for
all purposes under this Trust Agreement and the Global Preferred Security, and
Owners with respect to a Global Preferred Security shall hold such interests
pursuant to the Applicable Depositary Procedures. The Securities Registrar and
the Trustees shall be entitled to deal with the Depositary for all purposes of
this Trust Agreement relating to the Global Preferred Securities (including the
payment of the Liquidation Amount of and Distributions on the Book-Entry
Preferred Securities represented thereby and the giving of instructions or
directions by Owners of Book-Entry Preferred Securities represented thereby and
the giving of notices) as the sole Holder of the Book-Entry Preferred Securities
represented thereby and shall have no obligations to the Owners thereof. None of
the Trustees nor the Securities Registrar shall have any liability in respect of
any transfers effected by the Depositary.
(e) The rights of the Owners of the Book-Entry Preferred Securities shall
be exercised only through the Depositary and shall be limited to those
established by law, the Applicable Depositary Procedures and agreements between
such Owners and the Depositary and/or the Depositary Participants, provided,
solely for the purpose of determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in this
Trust Agreement, so long as Definitive Preferred Security Certificates have not
been issued pursuant to Section 5.4(a), the Trustees may conclusively rely on,
and shall be fully protected in relying on, any written instrument (including a
proxy) delivered to the Property Trustee by the Depositary setting forth the
Owners' votes or assigning the right to vote on any matter to any other Persons
either in whole or in part. Unless and until Definitive Preferred Securities
Certificates are issued pursuant to Section 5.4(a), the initial Depositary will
make book-entry transfers among the Depositary Participants and receive and
transmit payments on the Preferred Securities to such Depositary Participants,
and none of the Depositor or the Trustees shall have any responsibility or
obligation with respect thereto.
(f) To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Global Preferred Security, the Trustees shall give all such
notices and communications specified herein to be given to the Depositary, and
shall have no obligations to the Owners.
SECTION V.7. Registration of Transfer and Exchange of Preferred Securities
Certificates.
(a) The Property Trustee shall keep or cause to be kept, at the Corporate
Trust Office, a register or registers (the "Securities Register") in which the
registrar and transfer agent with respect to the Trust Securities (the
"Securities Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates and registration of transfers
and exchanges of Preferred Securities Certificates as herein provided. The
Person acting as the Property Trustee shall at all times also be the Securities
Registrar. The provisions of Article VIII shall apply to the Property Trustee in
its role as Securities Registrar.
<PAGE>
(b) Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.7(f), the
Administrative Trustees or any one of them shall execute by manual or facsimile
signature and deliver to the Property Trustee, and the Property Trustee shall
deliver, in the name of the designated transferee or transferees, one or more
new Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount as may be required by this Trust Agreement dated
the date of execution by such Administrative Trustee or Trustees. At the option
of a Holder, Preferred Securities Certificates may be exchanged for other
Preferred Securities Certificates in authorized denominations and of a like
aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificate to be exchanged at the office or agency maintained pursuant to
Section 5.7(f). Whenever any Preferred Securities Certificates are so
surrendered for exchange, the Administrative Trustees or any one of them shall
execute by manual or facsimile signature and deliver to the Property Trustee,
and the Property Trustee shall deliver, the Preferred Securities Certificates
that the Holder making the exchange is entitled to receive.
(c) The Securities Registrar shall not be required, (i) to issue, register
the transfer of or exchange any Preferred Security during a period beginning at
the opening of business 15 days before the day of selection for redemption of
such Preferred Securities pursuant to Article IV and ending at the close of
business on the day of mailing of the notice of redemption or (ii) to register
the transfer of or exchange any Preferred Security so selected for redemption in
whole or in part, except, in the case of any such Preferred Security to be
redeemed in part, any portion thereof not to be redeemed.
(d) Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Securities
Registrar duly executed by the Holder or such Holder's attorney duly authorized
in writing.
(e) No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Property Trustee on
behalf of the Trust may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
(f) The Administrative Trustees shall designate an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange. The Company initially designates the
Corporate Trust Office as its office and agency for such purposes. The
Administrative Trustees shall give prompt written notice to the Depositor, the
Property Trustee and to the Holders of any change in the location of any such
office or agency.
SECTION V.8. Mutilated, Destroyed, Lost or Stolen Securities Certificates.
(a) If any mutilated Securities Certificate shall be surrendered to the
Securities Registrar together with such security or indemnity as may be required
by the Securities Registrar and the Administrative Trustees to save each of them
harmless, the Administrative Trustees, or any one of them, on behalf of the
Trust, shall execute and make available for delivery in exchange therefor a new
Securities Certificate of like class, tenor and denomination.
<PAGE>
(b) If the Securities Registrar shall receive evidence to its satisfaction
of the destruction, loss or theft of any Securities Certificate and there shall
be delivered to the Securities Registrar and the Administrative Trustees such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Securities Certificate shall have been
acquired by a bona fide purchaser, the Administrative Trustees, or any one of
them, on behalf of the Trust, shall execute and make available for delivery, in
exchange for or in lieu of any such destroyed, lost or stolen Securities
Certificate, a new Securities Certificate of like class, tenor and denomination.
(c) In connection with the issuance of any new Securities Certificate under
this Section 5.8, the Administrative Trustees or the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
(d) Any duplicate Securities Certificate issued pursuant to this Section
5.8 shall constitute conclusive evidence of an undivided beneficial interest in
the assets of the Trust corresponding to that evidenced by the mutilated, lost,
stolen or destroyed Securities Certificate, as if originally issued, whether or
not the lost, stolen or destroyed Securities Certificate shall be found at any
time.
(e) If any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Depositor in its discretion may, instead
of issuing a new Security, pay such Security.
(f) The provisions of this Section 5.8 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, destroyed, lost or stolen Securities Certificates.
SECTION V.9. Persons Deemed Holders.
The Trustees and the Securities Registrar shall each treat the Person in
whose name any Securities Certificate shall be registered in the Securities
Register as the owner of such Securities Certificate for the purpose of
receiving Distributions and for all other purposes whatsoever, and none of the
Trustees and the Securities Registrar shall be bound by any notice to the
contrary.
<PAGE>
SECTION V.10. Cancellation.
All Preferred Securities Certificates surrendered for registration of
transfer or exchange or for payment shall, if surrendered to any Person other
than the Property Trustee, be delivered to the Property Trustee, and any such
Preferred Securities Certificates and Preferred Securities Certificates
surrendered directly to the Property Trustee for any such purpose shall be
promptly canceled by it. The Administrative Trustees may at any time deliver to
the Property Trustee for cancellation any Preferred Securities Certificates
previously delivered hereunder that the Administrative Trustees may have
acquired in any manner whatsoever, and all Preferred Securities Certificates so
delivered shall be promptly canceled by the Property Trustee. No Preferred
Securities Certificates shall be executed and delivered in lieu of or in
exchange for any Preferred Securities Certificates canceled as provided in this
Section 5.10, except as expressly permitted by this Trust Agreement. All
canceled Preferred Securities Certificates shall be disposed of by the Property
Trustee in accordance with its customary practices and the Property Trustee
shall deliver to the Administrative Trustees a certificate of such disposition.
SECTION V.11. Ownership of Common Securities by Depositor.
(a) On the Closing Date, the Depositor shall acquire, and thereafter shall
retain, beneficial and record ownership of the Common Securities. Neither the
Depositor nor any successor Holder of the Common Securities may transfer less
than all the Common Securities, and the Depositor or any such successor Holder
may transfer the Common Securities only (i) in connection with a consolidation
or merger of the Depositor into another Person, or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Section 8.1 of the Indenture or (ii) to the Depositor
or an Affiliate of the Depositor in compliance with applicable law (including
the Securities Act, and applicable state securities and blue sky laws). To the
fullest extent permitted by law, any attempted transfer of the Common Securities
other than as set forth in the immediately preceding sentence shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating substantially "THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE
TRUST AGREEMENT."
(b) Any Holder of the Common Securities shall be liable for the debts and
obligations of the Trust in the manner and to the extent set forth with respect
to the Depositor and agrees that it shall be subject to all liabilities to which
the Depositor may be subject.
SECTION V.12. Restricted Legends.
(a) Each Preferred Security Certificate shall bear a legend in
substantially the following form:
"THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND SUCH PREFERRED SECURITIES
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY
PREFERRED SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE PREFERRED
SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.
<PAGE>
THE HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE
AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH
PREFERRED SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY
(I) TO THE TRUST, (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR (IV) PURSUANT TO AN EXEMPTION FROM THE SECURITIES ACT, IN EACH CASE
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN THE CASE OF
(IV), SUBJECT TO THE RIGHT OF THE TRUST AND THE DEPOSITOR TO REQUIRE AN
OPINION OF COUNSEL AND OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND
(B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY PREFERRED SECURITIES FROM
IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE."
(b) The above legend shall not be removed from any of the Preferred
Securities Certificates unless there is delivered to the Property Trustee and
the Depositor satisfactory evidence, which may include an opinion of counsel, as
may be reasonably required to ensure that any future transfers thereof may be
made without restriction under the provisions of the Securities Act and other
applicable law. Upon provision of such satisfactory evidence, one or more of the
Administrative Trustees on behalf of the Trust shall execute and deliver to the
Property Trustee, and the Property Trustee shall deliver, at the written
direction of the Administrative Trustees and the Depositor, Preferred Securities
Certificates that do not bear the legend.
ARTICLE VI.
MEETINGS; VOTING; ACTS OF HOLDERS
SECTION VI.1. Notice of Meetings.
Notice of all meetings of the Holders of the Preferred Securities, stating
the time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 10.8 to each Holder of Preferred Securities, at such
Holder's registered address, at least 15 days and not more than 90 days before
the meeting. At any such meeting, any business properly before the meeting may
be so considered whether or not stated in the notice of the meeting. Any
adjourned meeting may be held as adjourned without further notice.
<PAGE>
SECTION VI.2. Meetings of Holders of the Preferred Securities.
(a) No annual meeting of Holders is required to be held. The Property
Trustee, however, shall call a meeting of the Holders of the Preferred
Securities to vote on any matter upon the written request of the Holders of at
least 25% in aggregate Liquidation Amount of the Outstanding Preferred
Securities and the Administrative Trustees or the Property Trustee may, at any
time in their discretion, call a meeting of the Holders of the Preferred
Securities to vote on any matters as to which such Holders are entitled to vote.
(b) The Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, present in person or by proxy, shall constitute a quorum
at any meeting of the Holders of the Preferred Securities.
(c) If a quorum is present at a meeting, an affirmative vote by the Holders
present, in person or by proxy, holding Preferred Securities representing at
least a Majority in Liquidation Amount of the Preferred Securities held by the
Holders present, either in person or by proxy, at such meeting shall constitute
the action of the Holders of the Preferred Securities, unless this Trust
Agreement requires a lesser or greater number of affirmative votes.
SECTION VI.3. Voting Rights.
Holders shall be entitled to one vote for each $1,000 of Liquidation Amount
represented by their Outstanding Trust Securities in respect of any matter as to
which such Holders are entitled to vote.
SECTION VI.4. Proxies, Etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote by
proxy, provided, that no proxy shall be voted at any meeting unless it shall
have been placed on file with the Administrative Trustees, or with such other
officer or agent of the Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken. Pursuant to a
resolution of the Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee. Only Holders
of record shall be entitled to vote. When Trust Securities are held jointly by
several Persons, any one of them may vote at any meeting in person or by proxy
in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Holder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
<PAGE>
SECTION VI.5. Holder Action by Written Consent.
Any action that may be taken by Holders at a meeting may be taken without a
meeting and without prior notice if Holders holding at least a Majority in
Liquidation Amount of all Preferred Securities entitled to vote in respect of
such action (or such lesser or greater proportion thereof as shall be required
by any other provision of this Trust Agreement) shall consent to the action in
writing; provided, that notice of such action is promptly provided to the
Holders of Preferred Securities that did not consent to such action. Any action
that may be taken by the Holders of all the Common Securities may be taken
without a meeting and without prior notice if such Holders shall consent to the
action in writing.
SECTION VI.6. Record Date for Voting and Other Purposes.
Except as provided in Section 6.10(a), for the purposes of determining the
Holders who are entitled to notice of and to vote at any meeting or to act by
written consent, or to participate in any distribution on the Trust Securities
in respect of which a record date is not otherwise provided for in this Trust
Agreement, or for the purpose of any other action, the Administrative Trustees
may from time to time fix a date, not more than 90 days prior to the date of any
meeting of Holders or the payment of a distribution or other action, as the case
may be, as a record date for the determination of the identity of the Holders of
record for such purposes.
SECTION VI.7. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
thereof duly appointed in writing; and, except as otherwise expressly provided
herein, such action shall become effective when such instrument or instruments
are delivered to an Administrative Trustee. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and conclusive in favor of
the Trustees, if made in the manner provided in this Section 6.7.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than such signer's individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signer's
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner that any Trustee receiving the same deems sufficient.
<PAGE>
(c) The ownership of Trust Securities shall be proved by the Securities
Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Trust Security shall bind every future Holder
of the same Trust Security and the Holder of every Trust Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustees, the
Administrative Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
(e) Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
(f) If any dispute shall arise among the Holders or the Trustees with
respect to the authenticity, validity or binding nature of any request, demand,
authorization, direction, notice, consent, waiver or other Act of such Holder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
SECTION VI.8. Inspection of Records.
Upon reasonable written notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection by any
Holder during normal business hours for any purpose reasonably related to such
Holder's interest as a Holder.
SECTION VI.9. Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Preferred Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Securities Certificates, be construed so as to constitute the Holders
from time to time as partners or members of an association.
<PAGE>
(b) So long as any Notes are held by the Property Trustee on behalf of the
Trust, the Property Trustee shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Note Trustee, or
exercise any trust or power conferred on the Property Trustee with respect to
the Notes, (ii) waive any past default that may be waived under Section 5.13 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Notes shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the Notes, where such
consent shall be required, without, in each case, obtaining the prior approval
of the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, provided, that where a consent under the Indenture would require the
consent of each Holder of Notes affected thereby, no such consent shall be given
by the Property Trustee without the prior written consent of each Holder of
Preferred Securities. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of the Preferred
Securities, except by a subsequent vote of the Holders of the Preferred
Securities. In addition to obtaining the foregoing approvals of the Holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Property Trustee shall, at the expense of the Depositor, obtain an Opinion of
Counsel experienced in such matters to the effect that such action shall not
cause the Trust to be taxable as a corporation or classified as other than a
grantor trust for United States federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Trustees otherwise propose to effect, (i) any action that would adversely affect
in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust Agreement or
otherwise or (ii) the dissolution, winding-up or termination of the Trust, other
than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a Majority in Liquidation
Amount of the Preferred Securities. Notwithstanding any other provision of this
Trust Agreement, no amendment to this Trust Agreement may be made if, as a
result of such amendment, it would cause the Trust to be taxable as a
corporation or classified as other than a grantor trust for United States
federal income tax purposes.
SECTION VI.10. Acceleration of Maturity; Rescission of Annulment; Waivers
of Past Defaults.
(a) For so long as any Preferred Securities remain Outstanding, if, upon a
Note Event of Default, the Note Trustee fails or the holders of not less than
25% in principal amount of the outstanding Notes fail to declare the principal
of all of the Notes to be immediately due and payable, the Holders of at least
25% in Liquidation Amount of the Preferred Securities then Outstanding shall
have the right to make such declaration by a notice in writing to the Property
Trustee, the Depositor and the Note Trustee. At any time after a declaration of
acceleration with respect to the Notes has been made and before a judgment or
decree for payment of the money due has been obtained by the Note Trustee as
provided in the Indenture, the Holders of at least a Majority in Liquidation
Amount of the Preferred Securities, by written notice to the Property Trustee,
the Depositor and the Note Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Depositor has paid or deposited with the Note Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on all of the Notes,
(B) any accrued Additional Interest on all of the Notes,
<PAGE>
(C) the principal of and any premium on any Notes that have
become due otherwise than by such declaration of acceleration and
interest and Additional Interest thereon at the rate borne by the
Notes, and
(D) all sums paid or advanced by the Note Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Note Trustee, the Property Trustee and their agents
and counsel; and
(ii) all Note Events of Default, other than the non-payment of the
principal of the Notes that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.13 of the Indenture.
Upon receipt by the Property Trustee of written notice requesting such an
acceleration, or rescission and annulment thereof, by Holders of any part of the
Preferred Securities, a record date shall be established for determining Holders
of Outstanding Preferred Securities entitled to join in such notice, which
record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date; provided,
that, unless such declaration of acceleration, or rescission and annulment, as
the case may be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day that is 90 days after
such record date, such notice of declaration of acceleration, or rescission and
annulment, as the case may be, shall automatically and without further action by
any Holder be canceled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after expiration of such
90-day period, a new written notice of declaration of acceleration, or
rescission and annulment thereof, as the case may be, that is identical to a
written notice that has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 6.10(a).
(b) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Note Event of Default specified in paragraph (a) or
(b) of Section 5.1 of the Indenture, any Holder of Preferred Securities shall
have the right to institute a proceeding directly against the Depositor,
pursuant to Section 5.8 of the Indenture, for enforcement of payment to such
Holder of any amounts payable in respect of Notes having an aggregate principal
amount equal to the aggregate Liquidation Amount of the Preferred Securities of
such Holder. Except as set forth in Section 6.10(a) and this Section 6.10(b),
the Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to the holders of, or in respect of, the Notes.
<PAGE>
(c) Except as otherwise provided in paragraphs (a) and (b) of this Section
6.10, the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities may, on behalf of the Holders of all the Preferred Securities, waive
any Note Event of Default, except any Note Event of Default arising from the
failure to pay any principal or interest on the Notes (unless such Note Event of
Default has been cured and a sum sufficient to pay all matured installments of
interest and all principal and premium on all Notes due otherwise than by
acceleration has been deposited with the Note Trustee) or a Note Event of
Default in respect of a covenant or provision that under the Indenture cannot be
modified or amended without the consent of the holder of each outstanding Note.
Upon any such waiver, such Note Event of Default shall cease to exist and any
Note Event of Default arising therefrom shall be deemed to have been cured for
every purpose of the Indenture; but no such waiver shall affect any subsequent
Note Event of Default or impair any right consequent thereon.
(d) Except as otherwise provided in paragraphs (a), (b) and (c) of this
Section 6.10, the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Trust Agreement, but no such waiver shall extend to any subsequent or other
Event of Default or impair any right consequent thereon.
(e) The Holders of a Majority in Liquidation Amount of the Preferred
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee in
respect of this Trust Agreement or the Notes or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement; provided, that,
subject to Sections 8.5 and 8.7, the Property Trustee shall have the right to
decline to follow any such direction if the Property Trustee being advised by
counsel determines that the action so directed may not lawfully be taken, or if
the Property Trustee in good faith shall, by an officer or officers of the
Property Trustee, determine that the proceedings so directed would be illegal or
involve it in personal liability or be unduly prejudicial to the rights of
Holders not party to such direction, and provided, further, that nothing in this
Trust Agreement shall impair the right of the Property Trustee to take any
action deemed proper by the Property Trustee and which is not inconsistent with
such direction.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION VII.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) the Property Trustee is a national banking association, duly organized,
validly existing and in good standing under the laws of the United States;
<PAGE>
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) the Delaware Trustee is a national banking association, duly organized,
validly existing and in good standing under the laws of the United States;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and delivered
by the Property Trustee and the Delaware Trustee and constitutes the legal,
valid and binding agreement of each of the Property Trustee and the Delaware
Trustee enforceable against each of them in accordance with its terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and to general principles of equity;
(f) the execution, delivery and performance of this Trust Agreement have
been duly authorized by all necessary corporate or other action on the part of
the Property Trustee and the Delaware Trustee and do not require any approval of
stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Articles of
Association or By-laws of the Property Trustee or the Delaware Trustee or (ii)
violate any applicable law, governmental rule or regulation of the United States
or the State of Delaware, as the case may be, governing the banking, trust or
general powers of the Property Trustee or the Delaware Trustee or any order,
judgment or decree applicable to the Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee
contemplated herein requires the consent or approval of, the giving of notice
to, the registration with or the taking of any other action with respect to any
governmental authority or agency under any existing law of the United States or
the State of Delaware governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee, as the case may be; and
<PAGE>
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal that,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
SECTION VII.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the Holders
that:
(a) the Depositor is a corporation duly organized, validly existing and in
good standing under the laws of its State of incorporation;
(b) the Depositor has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and delivered
by the Depositor and constitutes the legal, valid and binding agreement of the
Depositor enforceable against the Depositor in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity;
(d) the Securities Certificates issued at the Closing Date on behalf of the
Trust have been duly authorized and will have been duly and validly executed,
issued and delivered by the applicable Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Holders will be, as of each such date, entitled to the benefits of this
Trust Agreement;
(e) the execution, delivery and performance of this Trust Agreement have
been duly authorized by all necessary corporate or other action on the part of
the Depositor and do not require any approval of stockholders of the Depositor
and such execution, delivery and performance will not (i) violate the Charter or
By-laws of the Depositor or (ii) violate any applicable law, governmental rule
or regulation governing the Depositor or any order, judgment or decree
applicable to the Depositor;
(f) neither the authorization, execution or delivery by the Depositor of
this Trust Agreement nor the consummation of any of the transactions by the
Depositor contemplated herein requires the consent or approval of, the giving of
notice to, the registration with or the taking of any other action with respect
to any governmental authority or agency under any existing law governing the
Depositor; and
<PAGE>
(g) there are no proceedings pending or, to the best of the Depositor's
knowledge, threatened against or affecting the Depositor in any court or before
any governmental authority, agency or arbitration board or tribunal that,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Depositor, as the
case may be, to enter into or perform its obligations under this Trust
Agreement.
ARTICLE VIII.
THE TRUSTEES
SECTION VIII.1. Number of Trustees.
The number of Trustees shall be five, provided, that the Property Trustee
and the Delaware Trustee may be the same Person, in which case the number of
Trustees shall be four. The number of Trustees may be increased or decreased by
Act of the Holder of the Common Securities. The death, resignation, retirement,
removal, bankruptcy, incompetence or incapacity to perform the duties of an
Trustee shall not operate to annul, dissolve or terminate the Trust.
SECTION VIII.2. Property Trustee Required.
There shall at all times be a Property Trustee hereunder with respect to
the Trust Securities. The Property Trustee shall be a corporation organized and
doing business under the laws of the United States or of any State thereof,
authorized to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
federal or state authority and having an office within the United States. If any
such Person publishes reports of condition at least annually pursuant to law or
to the requirements of its supervising or examining authority, then for the
purposes of this Section 8.2, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Property Trustee
shall cease to be eligible in accordance with the provisions of this Section
8.2, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article VIII.
SECTION VIII.3. Delaware Trustee Required.
(a) If required by the Delaware Business Trust Act, there shall at all
times be a Delaware Trustee with respect to the Trust Securities. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age and
a resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law and that shall act through one or more
persons authorized to bind such entity. If at any time the Delaware Trustee
shall cease to be eligible in accordance with the provisions of this Section
8.3, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article VIII.
<PAGE>
(b) The Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities, of the
Property Trustee or the Administrative Trustees set forth herein. The Delaware
Trustee shall be one of the trustees of the Trust for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the Delaware Business
Trust Act and for taking such actions as are required to be taken by a Delaware
trustee under the Delaware Business Trust Act. The duties (including fiduciary
duties), liabilities and obligations of the Delaware Trustee shall be limited to
(a) accepting legal process served on the Trust in the State of Delaware and (b)
the execution of any certificates required to be filed with the Secretary of
State of the State of Delaware that the Delaware Trustee is required to execute
under Section 3811 of the Delaware Business Trust Act and there shall be no
other duties (including fiduciary duties) or obligations, express or implied, at
law or in equity, of the Delaware Trustee.
SECTION VIII.4. Appointment of Administrative Trustees.
(a) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity. Each of the individuals identified as an "Administrative Trustee" in the
preamble of this Trust Agreement hereby accepts his or her appointment as such.
(b) Except where a requirement for action by a specific number of
Administrative Trustees is expressly set forth in this Trust Agreement, any act
required or permitted to be taken by, and any power of the Administrative
Trustees may be exercised by, or with the consent of, any one such
Administrative Trustee. Whenever a vacancy in the number of Administrative
Trustees shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.11, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
<PAGE>
SECTION VIII.5. Duties and Responsibilities of the Trustees.
(a) The rights, immunities, duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and there shall be no other duties
(including fiduciary duties) or obligations, express or implied, at law or in
equity, of the Trustees. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require any of the Trustees to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its or their rights or
powers, if it or they shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. Whether or not herein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section 8.5. To the extent that, at law or in equity, a
Trustee has duties and liabilities relating to the Trust or to the Holders, such
Trustee shall not be liable to the Trust or to any Holder for such Trustee's
good faith reliance on the provisions of this Trust Agreement. The provisions of
this Trust Agreement, to the extent that they restrict the duties and
liabilities of the Trustees otherwise existing at law or in equity, are agreed
by the Depositor and the Holders to replace such other duties and liabilities of
the Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, by its
acceptance of a Trust Security, agrees that it will look solely to the revenue
and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section 8.5(b)
does not limit the liability of the Trustees expressly set forth elsewhere in
this Trust Agreement.
(c) No provisions of this Trust Agreement shall be construed to relieve the
Property Trustee from liability with respect to matters that are within the
authority of the Property Trustee under this Trust Agreement for its own
negligent action, negligent failure to act or willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error or judgment
made in good faith by an authorized officer of the Property Trustee, unless
it shall be proved that the Property Trustee was negligent in ascertaining
the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of at least a Majority in Liquidation Amount
of the Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee
hereunder or under the Indenture, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Notes and the Payment Account
shall be to deal with such Property in a similar manner as the Property
Trustee deals with similar property for its own account, subject to the
protections and limitations on liability afforded to the Property Trustee
under this Trust Agreement;
(iv) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor;
and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by
the Property Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law; and
<PAGE>
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of any other Trustee or the
Depositor.
SECTION VIII.6. Notices of Defaults and Extensions.
(a) Within 90 days after the occurrence of a default actually known to the
Property Trustee, the Property Trustee shall transmit notice of such default to
the Holders, the Administrative Trustees and the Depositor, unless such default
shall have been cured or waived; provided, that, except in the case of a default
in the payment of the principal of or any premium or interest (including any
Additional Interest) on any Trust Security, the Property Trustee shall be fully
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Property Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Trust Securities. For
the purpose of this Section, the term "default" means any event that is, or
after notice or lapse of time or both would become, an Event of Default.
(b) Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the Notes
pursuant to the Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.8, notice of such exercise to the
Holders and the Administrative Trustees, unless such exercise shall have been
revoked.
(c) The Property Trustee shall not be deemed to have knowledge of any Event
of Default unless the Property Trustee shall have received written notice
thereof from the Depositor, any Administrative Trustee or any Holder or unless
an officer of the Property Trustee charged with the administration of this Trust
Agreement shall have obtained actual knowledge of such Event of Default.
(d) The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of default received with respect to the Notes.
SECTION VIII.7. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.5:
(a) the Property Trustee may conclusively rely and shall be protected in
acting or refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
appraisal, bond, debenture, note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
<PAGE>
(b) if (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action, (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee
finds ambiguous or inconsistent with any other provisions contained herein or
(iii) the Property Trustee is unsure of the application of any provision of this
Trust Agreement, then, except as to any matter as to which the Holders of the
Preferred Securities are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting the Depositor's written instruction as to the course of action to be
taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, that if the Property Trustee
does not receive such instructions of the Depositor within ten Business Days
after it has delivered such notice or such reasonably shorter period of time set
forth in such notice, the Property Trustee may, but shall be under no duty to,
take such action, or refrain from taking such action, as the Property Trustee
shall deem advisable and in the best interests of the Holders, in which event
the Property Trustee shall have no liability except for its own negligence, bad
faith or wilful misconduct;
(c) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate unless
otherwise expressly provided herein;
(d) any direction or act of an Administrative Trustee contemplated by this
Trust Agreement shall be sufficiently evidenced by a certificate executed by
such Administrative Trustee and setting forth such direction or act;
(e) the Property Trustee shall have no duty to see to any recording, filing
or registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any re-recording,
re-filing or re-registration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Property Trustee, the Depositor or any of its Affiliates, and may
include any of its employees) and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon and in
accordance with such advice; the Property Trustee shall have the right at any
time to seek instructions concerning the administration of this Trust Agreement
from any court of competent jurisdiction;
<PAGE>
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Holders pursuant to this Trust Agreement, unless such
Holders shall have offered to the Property Trustee reasonable security or
indemnity against the costs, expenses (including attorneys' fees and expenses)
and liabilities that might be incurred by it in compliance with such request or
direction, including reasonable advances as may be requested by the Property
Trustee;
(h) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other paper
or document, unless requested in writing to do so by one or more Holders, but
the Property Trustee may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Property Trustee shall determine
to make such inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Depositor, personally or by agent or
attorney;
(i) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents,
attorneys, custodians or nominees and the Property Trustee shall not be
responsible for any negligence or misconduct on the part of any such agent,
attorney, custodian or nominee appointed with due care by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders (which instructions may
only be given by the Holders of the same proportion in Liquidation Amount of the
Trust Securities as would be entitled to direct the Property Trustee under this
Trust Agreement in respect of such remedy, right or action), (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received and (iii) shall be protected in acting in accordance
with such instructions;
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement;
(l) without prejudice to any other rights available to the Property Trustee
under applicable law, when the Property Trustee incurs expenses or renders
services in connection with a Bankruptcy Event, such expenses (including legal
fees and expenses of its agents and counsel) and the compensation for such
services are intended to constitute expenses of administration under any
bankruptcy law or law relating to creditors rights generally; and
<PAGE>
(m) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Property Trustee (unless
other evidence be herein specifically prescribed) may, in the absence or bad
faith on its part, request and rely on an Officers= Certificate which, upon
receipt of such request, shall be promptly delivered by the Depositor.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which such Person shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts,
or to exercise any such right, power, duty or obligation.
SECTION VIII.8. Delegation of Power.
Any Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21 its, his or her power
for the purpose of executing any documents contemplated in Section 2.5. The
Trustees shall have power to delegate from time to time to such of their number
or to the Depositor the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Trustees or
otherwise as the Trustees may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions of this Trust
Agreement.
SECTION VIII.9. May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and except as provided in the definition of the term "Outstanding" in
Article I, may otherwise deal with the Trust with the same rights it would have
if it were not an Trustee or such other agent.
SECTION VIII.10. Compensation; Reimbursement; Indemnity.
The Depositor agrees:
(a) to pay to the Trustees from time to time such reasonable compensation
for all services rendered by them hereunder as may be agreed by the Depositor
and the Trustees from time to time (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in accordance with
any provision of this Trust Agreement (including the reasonable compensation and
the expenses and disbursements of their agents and counsel), except any such
expense, disbursement or advance as may be attributable to their gross
negligence, bad faith or wilful misconduct; and
<PAGE>
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any
officer, director, shareholder, employee, representative or agent of any Trustee
or any Affiliate of any Trustee and (iv) any employee or agent of the Trust
(referred to herein as an "Indemnified Person") from and against any loss,
damage, liability, tax (other than income, franchise or other taxes imposed on
amounts paid pursuant to (a) or (b) hereof), penalty, expense or claim of any
kind or nature whatsoever incurred without negligence, bad faith or willful
misconduct on its part, arising out of or in connection with the acceptance or
administration of the trust hereunder, including the advancement of funds to
cover the reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
The provisions of this Section 8.10 shall survive the termination of this
Trust Agreement and the earlier removal or resignation of any Trustee.
No Trustee may claim any Lien on any Trust Property as a result of any
amount due pursuant to this Section 8.10.
SECTION VIII.11. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of any Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 8.12.
(b) A Trustee may resign at any time by giving written notice thereof to
the Depositor and, in the case of the Property Trustee and the Delaware Trustee,
to the Holders.
(c) Unless an Event of Default shall have occurred and be continuing, the
Property Trustee or the Delaware Trustee, or both of them, may be removed (with
or without cause) at any time by Act of the Holder of Common Securities. If an
Event of Default shall have occurred and be continuing, the Property Trustee or
the Delaware Trustee, or both of them, may be removed (with or without cause) at
such time by Act of the Holders of at least a Majority in Liquidation Amount of
the Preferred Securities, delivered to the removed Trustee (in its individual
capacity and on behalf of the Trust). An Administrative Trustee may be removed
(with or without cause) only by Act of the Holder of the Common Securities at
any time.
<PAGE>
(d) If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
reason, at a time when no Event of Default shall have occurred and be
continuing, the Holder of the Common Securities, by Act of the Holder of the
Common Securities shall promptly appoint a successor Trustee or Trustees, and
such successor Trustee and the retiring Trustee shall comply with the applicable
requirements of Section 8.12. If the Property Trustee or the Delaware Trustee
shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when an
Event of Default shall have occurred and be continuing, the Holders of the
Preferred Securities, by Act of the Holders of a Majority in Liquidation Amount
of the Preferred Securities shall promptly appoint a successor Property Trustee
or Delaware Trustee, and such successor Property Trustee or Delaware Trustee and
the retiring Property Trustee or Delaware Trustee shall comply with the
applicable requirements of Section 8.12. If an Administrative Trustee shall
resign, be removed or become incapable of acting as Administrative Trustee, at a
time when an Event of Default shall have occurred and be continuing, the Holder
of the Common Securities by Act of the Holder of Common Securities shall
promptly appoint a successor Administrative Trustee and such successor
Administrative Trustee and the retiring Administrative Trustee shall comply with
the applicable requirements of Section 8.12. If no successor Trustee shall have
been so appointed by the Holder of the Common Securities or Holders of the
Preferred Securities and accepted appointment in the manner required by Section
8.12 within 60 days after the giving of a notice of resignation by a Trustee,
the removal of a Trustee, or a Trustee becoming incapable of acting as such
Trustee, any Holder who has been a Holder of Preferred Securities for at least
six months may, on behalf of himself and all others similarly situated, and any
resigning Trustee may, at the expense of the Depositor, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) The Depositor shall give notice of each resignation and each removal of
the Property Trustee or the Delaware Trustee and each appointment of a successor
Property Trustee or Delaware Trustee to all Holders in the manner provided in
Section 10.8. Each notice shall include the name of the successor Property
Trustee or Delaware Trustee and the address of its Corporate Trust Office if it
is the Property Trustee.
(f) Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Holder of Common
Securities, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act of the
remaining Administrative Trustees if there are at least two of them or (ii)
otherwise by the Holder of the Common Securities (with the successor in each
case being a Person who satisfies the eligibility requirement for Administrative
Trustees or Delaware Trustee, as the case may be, set forth in Sections 8.3 and
8.4).
(g) Upon the appointment of a successor Delaware Trustee, such successor
Delaware Trustee shall file a Certificate of Amendment to the Certificate of
Trust in accordance with Section 3810 of the Delaware Business Trust Act.
<PAGE>
SECTION VIII.12. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee, each
successor Trustee with respect to the Trust Securities shall execute and deliver
to the Depositor and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and each such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Trust or any successor
Trustee such retiring Trustee shall, upon payment of its charges, duly assign,
transfer and deliver to such successor Trustee all Trust Property, all proceeds
thereof and money held by such retiring Trustee hereunder with respect to the
Trust Securities and the Trust.
(b) Upon request of any such successor Trustee, the Trust (or the retiring
Trustee if requested by the Depositor) shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in the preceding paragraph.
(c) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article VIII.
SECTION VIII.13. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Trustee
shall be a party, or any Person succeeding to all or substantially all the
corporate trust business of such Trustee, shall be the successor of such Trustee
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, provided, that such Person shall be
otherwise qualified and eligible under this Article.
SECTION VIII.14. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities Certificates shall be
taken as the statements of the Trust and the Depositor, and the Trustees do not
assume any responsibility for their correctness. The Trustees make no
representations as to the title to, or value or condition of, the property of
the Trust or any part thereof, nor as to the validity or sufficiency of this
Trust Agreement, the Notes or the Trust Securities. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Notes.
SECTION VIII.15. Property Trustee May File Proofs of Claim.
(a) In case of any Bankruptcy Event (or event that with the passage of time
would become a Bankruptcy Event) relative to the Trust or any other obligor upon
the Trust Securities or the property of the Trust or of such other obligor or
their creditors, the Property Trustee (irrespective of whether any Distributions
on the Trust Securities shall then be due and payable and irrespective of
whether the Property Trustee shall have made any demand on the Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such proceeding or
otherwise:
<PAGE>
(i) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Property Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each
Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee first any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Property
Trustee, its agents and counsel, and any other amounts due the Property Trustee.
(b) Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION VIII.16. Reports to the Property Trustee.
The Depositor and the Administrative Trustees shall deliver to the Property
Trustee, within 120 days after the end of each fiscal year of the Trust ending
after the date of this Trust Agreement, an Officers' Certificate covering the
preceding fiscal year, stating whether or not to the knowledge of the signers
thereof the Depositor and the Trust are in default in the performance or
observance of any of the terms, provisions and conditions of this Trust
Agreement (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Depositor or the Trust shall be in default,
specifying all such defaults and the nature and status thereof of which they
have knowledge.
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION IX.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on July
19, 2040 (the "Expiration Date"), and the Trust Property shall be liquidated in
accordance with Section 9.4.
<PAGE>
SECTION IX.2. Early Termination.
The first to occur of any of the following events is an "Early Termination
Event", upon the occurrence of which the Trust shall be dissolved:
(a) the occurrence of a Bankruptcy Event in respect of, or the dissolution
or liquidation of, the Depositor, in its capacity as the Holder of the Common
Securities, unless the Depositor shall transfer the Common Securities as
provided by Section 5.11, in which case this provision shall refer instead to
any such successor Holder of the Common Securities;
(b) the written direction to the Property Trustee from the Holder of the
Common Securities at any time to dissolve the Trust and, after satisfaction of
any liabilities of the Trust as required by applicable law, to distribute the
Notes to Holders in exchange for the Preferred Securities (which direction is
optional and wholly within the discretion of the Holder of the Common
Securities), provided, that the Holder of the Common Securities shall have
received the prior approval of the Federal Reserve if then required;
(c) the redemption of all of the Preferred Securities in connection with
the payment at maturity or redemption of all the Notes; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION IX.3. Termination.
The respective obligations and responsibilities of the Trustees and the
Trust shall terminate upon the latest to occur of the following: (a) the
distribution by the Property Trustee to Holders of all amounts required to be
distributed hereunder upon the liquidation of the Trust pursuant to Section 9.4,
or upon the redemption of all of the Trust Securities pursuant to Section 4.2;
(b) the satisfaction of any expenses owed by the Trust; and (c) the discharge of
all administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Trust or the
Holders.
<PAGE>
SECTION IX.4. Liquidation.
(a) If an Early Termination Event specified in Section 9.2(a), (b) or (d)
occurs or upon the Expiration Date, the Trust shall be liquidated by the
Property Trustee as expeditiously as the Property Trustee shall determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Holder a Like Amount of Notes,
subject to Section 9.4(d). Notice of liquidation shall be given by the Property
Trustee by not less than 30 nor more than 60 days prior to the Liquidation Date
to each Holder of Trust Securities at such Holder's address appearing in the
Securities Register. All such notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Securities
Certificates not surrendered for exchange will be deemed to represent a
Like Amount of Notes; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Securities Certificates for Notes, or if Section
9.4(d) applies, receive a Liquidation Distribution, as the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and distribution of the Notes to Holders, the Property
Trustee, either itself acting as exchange agent or through the appointment of a
separate exchange agent, shall establish a record date for such distribution
(which shall not be more than 45 days prior to the Liquidation Date nor prior to
the date on which notice of such liquidation is given to the Holders) and,
establish such procedures as it shall deem appropriate to effect the
distribution of Notes in exchange for the Outstanding Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Notes will be issued to Holders of
Securities Certificates, upon surrender of such Certificates to the exchange
agent for exchange, (iii) the Depositor shall use its best efforts to have the
Notes listed on the New York Stock Exchange or on such other exchange,
interdealer quotation system or self-regulatory organization on which the
Preferred Securities are then listed, if any, (iv) Securities Certificates not
so surrendered for exchange will be deemed to represent a Like Amount of Notes
bearing accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on such Securities Certificates until such certificates are
so surrendered (and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of Securities Certificates with
respect to such Notes) and (v) all rights of Holders holding Trust Securities
will cease, except the right of such Holders to receive Notes upon surrender of
Securities Certificates.
<PAGE>
(d) Notwithstanding the other provisions of this Section 9.4, if
distribution of the Notes in the manner provided herein is determined by the
Property Trustee not to be permitted or practical, the Trust Property shall be
liquidated, and the Trust shall be wound-up by the Property Trustee in such
manner as the Property Trustee determines. In such event, Holders will be
entitled to receive out of the assets of the Trust available for distribution to
Holders, after satisfaction of liabilities to creditors of the Trust as provided
by applicable law, an amount equal to the Liquidation Amount per Trust Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any such winding up the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such winding-up pro rata (based
upon Liquidation Amounts) with Holders of all Trust Securities, except that, if
an Event of Default has occurred and is continuing, the Preferred Securities
shall have a priority over the Common Securities as provided in Section 4.3.
SECTION IX.5. Mergers, Consolidations, Amalgamations or Replacements of
Trust.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any Person except pursuant to this Article IX.
At the request of the Holders of the Common Securities, without the consent of
the Holders of the Preferred Securities, the Trust may merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any State; provided, that
(a) such successor entity either (i) expressly assumes all of the
obligations of the Trust with respect to the Preferred Securities or (ii)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities have the same priority as the Preferred Securities
with respect to distributions and payments upon liquidation, redemption and
otherwise,
(b) a trustee of such successor entity possessing substantially the same
powers and duties as the Property Trustee is appointed to hold the Notes,
(c) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized statistical
rating organization that then assigns a rating to the Preferred Securities,
(d) the Preferred Securities are listed, or any Successor Securities will
be listed upon notice of issuance, on any national securities exchange or
interdealer quotation system on which the Preferred Securities are then listed,
if any,
(e) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Preferred Securities (including any Successor
Securities) in any material respect,
(f) such successor entity has a purpose substantially identical to that of
the Trust,
<PAGE>
(g) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Depositor has received an Opinion of Counsel
to the effect that (i) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect and (ii) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Trust nor such successor entity will be required to register as an
"investment company" under the Investment Company Act and
(h) the Depositor or its permitted transferee owns all of the common
securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Guarantee Agreement.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
Holders of all of the Preferred Securities, consolidate, amalgamate, merge with
or into, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to any other Person or permit any other
entity to consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity to be taxable as a corporation or
classified as other than a grantor trust for United States federal income tax
purposes or cause the Notes to be treated as other than indebtedness of the
Corporation for United States federal income tax purposes.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION X.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death, bankruptcy, termination,
dissolution or incapacity of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor annul, dissolve or terminate the Trust nor entitle the legal
representatives or heirs of such Person or any Holder for such Person, to claim
an accounting, take any action or bring any proceeding in any court for a
partition or winding up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
<PAGE>
SECTION X.2. Agreed Tax Treatment of Trust and Trust Securities.
The parties hereto and, by its acceptance or acquisition of a Trust
Security or a beneficial interest therein the Holder of, and any Person that
acquires a beneficial interest in, such Trust Security intend and agree to treat
the Trust as a grantor trust for United States federal, state and local tax
purposes, and to treat the Trust Securities (including all payments and proceeds
with respect to such Trust Securities) as undivided beneficial ownership
interests in the Trust Property (and payments and proceeds therefrom,
respectively) for United States federal, state and local tax purposes. The
provisions of this Trust Agreement shall be interpreted to further this
intention and agreement of the parties.
SECTION X.3. Amendment.
(a) This Trust Agreement may be amended from time to time by the Property
Trustee, the Administrative Trustees and the Holder of all the Common
Securities, without the consent of any Holder of the Preferred Securities, (i)
to cure any ambiguity, correct or supplement any provision herein that may be
defective or inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Trust
Agreement, which shall not be inconsistent with the other provisions of this
Trust Agreement, (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure that the Trust
will not be taxable as a corporation or will not be classified as other than a
grantor trust for United States federal income tax purposes at all times that
any Trust Securities are Outstanding or to ensure that the Notes are treated as
indebtedness of the Depositor for United States federal income tax purposes, or
to ensure that the Trust will not be required to register as an "investment
company" under the Investment Company Act or (iii) to add to the covenants,
restrictions or obligations of the Depositor; provided, that in the case of
clauses (i), (ii) or (iii), such action shall not adversely affect in any
material respect the interests of any Holder.
(b) Except as provided in Section 10.3(c), any provision of this Trust
Agreement may be amended by the Property Trustee, the Administrative Trustees
and the Holder of all of the Common Securities and with (i) the consent of
Holders of at least a Majority in Liquidation Amount of the Preferred Securities
and (ii) receipt by the Trustees of an Opinion of Counsel to the effect that
such amendment or the exercise of any power granted to the Trustees in
accordance with such amendment will not cause the Trust to be taxable as a
corporation or classified as other than a grantor trust for United States
federal income tax purposes or affect the treatment of the Notes as indebtedness
of the Depositor for United States federal income tax purposes or affect the
Trust's exemption from status as an "investment company" under the Investment
Company Act.
(c) Notwithstanding any other provision of this Trust Agreement, without
the consent of each Holder, this Trust Agreement may not be amended to (i)
change the amount or timing of any Distribution on the Trust Securities or
otherwise adversely affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date, (ii) restrict or impair
the right of a Holder to institute suit for the enforcement of any such payment
on or after such date, (iii) reduce the percentage of aggregate Liquidation
Amount of Outstanding Preferred Securities, the consent of whose Holders is
required for any such amendment, or the consent of whose Holders is required for
any waiver of compliance with any provision of this Trust Agreement or of
defaults hereunder and their consequences provided for in this Trust Agreement
or (iv) modify this Section 10.3(c) or Section 6.10(e).
<PAGE>
(d) Notwithstanding any other provision of this Trust Agreement, no Trustee
shall enter into or consent to any amendment to this Trust Agreement that would
cause the Trust to be taxable as a corporation or to be classified as other than
a grantor trust for United States federal income tax purposes or that would
cause the Notes to fail or cease to be treated as indebtedness of the Depositor
for United States federal income tax purposes or that would cause the Trust to
fail or cease to qualify for the exemption from status as an "investment
company" under the Investment Company Act.
(e) If any amendment to this Trust Agreement is made, the Administrative
Trustees or the Property Trustee shall promptly provide to the Depositor a copy
of such amendment.
(f) No Trustee shall be required to enter into any amendment to this Trust
Agreement that affects its own rights, duties or immunities under this Trust
Agreement. The Trustees shall be entitled to receive an Opinion of Counsel and
an Officers' Certificate stating that any amendment to this Trust Agreement is
in compliance with this Trust Agreement and all conditions precedent herein
provided for relating to such action have been met.
(g) No amendment or modification to this Trust Agreement that adversely
affects in any material respect the rights, duties, liabilities, indemnities or
immunities of the Delaware Trustee hereunder shall be permitted without the
prior written consent of the Delaware Trustee.
SECTION X.4. Separability.
If any provision in this Trust Agreement or in the Securities Certificates
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and there shall be deemed substituted for the provision at
issue a valid, legal and enforceable provision as similar as possible to the
provision at issue.
SECTION X.5. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS,
THE TRUST, THE DEPOSITOR AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS CONFLICTS
OF LAWS PROVISIONS.
<PAGE>
SECTION X.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Trust and any Trustee, including any
successor by operation of law. Except in connection with a transaction involving
the Depositor that is permitted under Article VIII of the Indenture and pursuant
to which the assignee agrees in writing to perform the Depositor's obligations
hereunder, the Depositor shall not assign its obligations hereunder.
SECTION X.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION X.8. Reports, Notices and Demands.
(a) Any report, notice, demand or other communication that by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon any Holder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, addressed, (a)
in the case of a Holder of Preferred Securities, to such Holder as such Holder's
name and address may appear on the Securities Register; and (b) in the case of
the Holder of all the Common Securities or the Depositor, to BNCCORP, Inc., 322
East Main Avenue, Bismarck, ND 58501, Attention: Gregory K. Cleveland or Brenda
L. Rebel, or to such other address as may be specified in a written notice by
the Holder of all the Common Securities or the Depositor, as the case may be, to
the Property Trustee. Such report, notice, demand or other communication to or
upon a Holder shall be deemed to have been sufficiently given or made, for all
purposes, upon mailing. Such report, notice, demand or other communication to or
upon the Depositor shall be deemed to have been sufficiently given or made only
upon actual receipt of the writing by the Depositor.
(b) Any notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Property Trustee, the Delaware Trustee, the Administrative Trustees or the Trust
shall be given in writing by deposit thereof, first-class postage prepaid, in
the U.S. mail, personal delivery or facsimile transmission, addressed to such
Person as follows: (a) with respect to the Property Trustee to First Union
National Bank, 401 S. Tryon Street, 12th Floor, Charlotte, North Carolina
28288-1179, Attention: Corporate Trust, facsimile no. (704) 383-7316; (b) with
respect to the Delaware Trustee, to First Union Trust Company, National
Association, One Rodney Square, Suite 102, 920 King Street, Wilmington, Delaware
19801-7475, Attention: Corporate Trust, facsimile no.: (302) 888-7544; (c) with
respect to the Administrative Trustees, to them at the address above for notices
to the Depositor, marked "Attention: Administrative Trustees of BNC Capital
Trust I", and (d) with respect to the Trust, to its principal executive office
specified in Section 2.2, with a copy to the Property Trustee. Such notice,
demand or other communication to or upon the Trust, the Property Trustee or the
Administrative Trustees shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Trust, the Property Trustee or
the Administrative Trustees.
<PAGE>
SECTION X.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the Holders
that, until at least one year and one day after the Trust has been terminated in
accordance with Article IX, they shall not file, or join in the filing of, a
petition against the Trust under any Bankruptcy Law or otherwise join in the
commencement of any proceeding against the Trust under any Bankruptcy Law. If
the Depositor takes action in violation of this Section 10.9, the Property
Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the applicable bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor against
the Trust or the commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and should be estopped
and precluded therefrom and such other defenses, if any, as counsel for the
Property Trustee or the Trust may assert.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement as of the day and year first above written.
BNCCORP, INC,
as Depositor
By:_________________________________
Name:
Title:
FIRST UNION NATIONAL BANK, FIRST UNION TRUST COMPANY, NATIONAL
as Property Trustee ASSOCIATION, as Delaware
Trustee
By:_______________________________ By:_________________________________
Name: Name:
Title: Title:
_______________________________, _________________________________,
as Administrative Trustee as Administrative Trustee
By:_______________________________ By:_________________________________
Name: Name:
_______________________________,
as Administrative Trustee
By:_______________________________
Name:
<PAGE>
Exhibit A
CERTIFICATE OF TRUST
OF
BNC CAPITAL TRUST I
This Certificate of Trust of BNC Capital Trust I (the "Trust"), dated June
28, 2000, is being duly executed and filed on behalf of the Trust by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. '3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this Certificate of Trust
is: BNC Capital Trust I
2. Delaware Trustee. The name and business address of the trustee of the
Trust with its principal place of business in the State of Delaware are First
Union Trust Company, National Association, One Rodney Square, Suite 102, 920
King Street, Wilmington, Delaware 19801-7475, Attention: Corporate Trust.
3. Effective Date. This Certificate of Trust shall be effective upon its
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned have duly executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
FIRST UNION NATIONAL BANK, not
in its individual capacity, but
solely as Property Trustee
By:______________________________
Name:
Title:
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Delaware trustee
By:______________________________
Name:
Title:
<PAGE>
Exhibit B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH
APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT
Certificate Number Number of Common Securities
C-
Certificate Evidencing Common Securities
of
BNC Capital Trust I
12.045% Common Securities
(liquidation amount $1,000 per Common Security)
BNC Capital Trust I, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that BNCCORP, Inc., a
Delaware corporation (the "Holder") is the registered owner of common securities
of the Trust representing undivided common beneficial interests in the assets of
the Trust and designated the BNC Capital Trust I 12.045% Common Securities
(liquidation amount $1,000 per Common Security) (the "Common Securities").
Except in accordance with Section 5.11 of the Trust Agreement (as defined below)
the Common Securities are not transferable and any attempted transfer hereof
other than in accordance therewith shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust, dated as of July 12, 2000 as the same may be amended from time to time
(the "Trust Agreement"), among BNCCORP, Inc., as Depositor, First Union National
Bank, as Property Trustee, First Union Trust Company, National Association, as
Delaware Trustee, the Administrative Trustees named therein and the Holders,
from time to time, of Trust Securities. The Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
This Common Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
Terms used but not defined herein have the meanings set forth in the Trust
Agreement.
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed on behalf of the Trust this certificate this __ day of , _____.
BNC CAPITAL TRUST I
By:______________________________
Administrative Trustee
<PAGE>
Exhibit C
[IF THE PREFERRED SECURITIES CERTIFICATE IS TO BE EVIDENCED BY A GLOBAL
PREFERRED SECURITY, INSERT -- This Preferred Securities Certificate is a Global
Preferred Security within the meaning of the Trust Agreement hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Preferred Securities Certificate is exchangeable for Preferred
Securities Certificates registered in the name of a Person other than the
Depositary or its nominee only in the limited circumstances described in the
Trust Agreement and may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary, except in the limited
circumstances described in the Trust Agreement.
Unless this Preferred Security Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to BNC Capital Trust I or its agent for registration of transfer, exchange or
payment, and any Preferred Security Certificate issued is registered in the name
of Cede & Co. or such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]
THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND SUCH PREFERRED SECURITIES MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY PREFERRED SECURITIES IS
HEREBY NOTIFIED THAT THE SELLER OF THE PREFERRED SECURITIES MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A UNDER THE SECURITIES ACT.
<PAGE>
THE HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE
AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH PREFERRED
SECURITIES BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE TRUST,
(II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) PURSUANT TO AN
EXEMPTION FROM THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND, IN THE CASE OF (IV), SUBJECT TO THE RIGHT OF THE
TRUST AND THE DEPOSITOR TO REQUIRE AN OPINION OF COUNSEL AND OTHER INFORMATION
SATISFACTORY TO EACH OF THEM AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY
PREFERRED SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A)
ABOVE.
<PAGE>
Certificate Number Number of Preferred Securities
P-
---------------------
Certificate Evidencing Preferred Securities
of
BNC Capital Trust I
12.045% Preferred Securities
(liquidation amount $1,000 per Preferred Security)
BNC Capital Trust I, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that _____________, a (the
"Holder") is the registered owner of Preferred Securities of the Trust
representing an undivided preferred beneficial interest in the assets of the
Trust and designated the BNC Capital Trust I 12.045% Preferred Securities,
(liquidation amount $1,000 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the Trust,
in person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer as provided in Section 5.7 of the
Trust Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust, dated
as of July 12, 2000, as the same may be amended from time to time (the "Trust
Agreement"), among BNCCORP, Inc., as Depositor, First Union National Bank, as
Property Trustee, First Union Trust Company, National Association, as Delaware
Trustee, the Administrative Trustees named therein and the Holders, from time to
time, of Trust Securities. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by BNCCORP, Inc., a Delaware corporation, and
First Union National Bank, as Guarantee Trustee, dated as of July 12, 2000, as
the same may be amended from time to time (the "Guarantee Agreement"), to the
extent provided therein. The Trust will furnish a copy of each of the Trust
Agreement and the Guarantee Agreement to the Holder without charge upon written
request to the Property Trustee at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
This Preferred Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
<PAGE>
All capitalized terms used but not defined in this Preferred Securities
Certificate are used with the meanings specified in the Trust Agreement,
including the Exhibits thereto.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed on behalf of the Trust this certificate this __ day of , .
BNC CAPITAL TRUST I
By:______________________________
Administrative Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Securities Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature:______________________________________________________________
(Sign exactly as your name appears on the other side of
this Preferred Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
